Lord Brown of Eaton-under-Heywood: My Lords, I should perhaps start by noting that I was one of the committee of five which appointed IPSO and its chair, Sir Alan Moses, an old friend and colleague, and someone in whom I had and have full confidence. He is someone of robust independence and absolute integrity, and no respecter of persons.
In response to the title of this debate, so brilliantly introduced by the noble Lord, Lord Best, it would be my basic contention that we are now in a reasonably good place—certainly one that would be worsened rather than bettered by bringing Section 40 into force. This debate, fortuitously perhaps through its long delay, clearly feeds neatly into the ongoing consultation process on Section 40 and Leveson 2. I hold no particular brief for the press, least of the Daily Mail. How could I when it published an outrageous piece so recently on judges—“Enemies of the people”, if you please? But I gently point out to the House that even in the fanciful event of the Mail signing up to Impress, there would be no sanction for headlines of that sort. The brief I hold is not for the press, but it is strongly for freedom of expression, subject only and always to the laws of the land, civil and criminal.
Section 40 was of course passed in the wake of the hacking scandal, the revelations of which shocked the nation.
In the febrile atmosphere that followed Leveson, the political parties reached agreement on a detailed future regime for press regulation, Section 40 being,  as the noble Lord, Lord Best, described, designed as carrot and stick to control—one could say, to bribe and bully—the press into signing up to an ultimately state-approved regulator, something not easily seen as self-regulation.
Hacked Off, whose members include some, like the noble Baroness, Lady Hollins, for whom I have the most profound respect—

Lord Brown of Eaton-under-Heywood: Forgive me, that is my mistake and I stand corrected, but I hope that the noble Baroness will allow me to say that she is, so to speak, entirely sympathetic to its approach. One understands that; she has an understandable grievance against the press for its appalling treatment of her. Hacked Off was involved in the agreement. I do not know whether the press was that closely involved but, in all events, although there are those who say that an agreement is an agreement and that it must now be fully honoured by activating Section 40, I respectfully disagree. I give just four brief reasons why.
First: can anyone doubt that life for newsprint publishers is becoming ever harder? There are ever fewer readers and, perhaps, more importantly, ever fewer advertisers, as online competition becomes ever more successful. Of course, Leveson regulation does not extend in the same way to online material. Secondly, not only have the courts shown themselves well able to deal with hacking and other criminal behaviour, with regard to the civil law, the right to privacy is becoming increasingly entrenched. Prior to the Human Rights Act, there was no right to privacy under English law, but now, one has only to consider Max Mosley’s case, in which he was awarded £60,000 damages against the press for an unjustifiable invasion of privacy, as the court held—your Lordships will need no reminding of the particular circumstances of the case—to see how far privacy law has come. That said, it is perhaps something of an irony that it is now Max Mosley’s money that is behind Impress, with its guarantee of four years of cheap arbitration.
Thirdly, when Section 40 was enacted, the PCC was still the only regulator in town. It was regarded by many as toothless and ineffectual. I suggest that IPSO is an altogether more effective, powerful body. It is now well established, widely respected and already trialling its own arbitration scheme. Its editorial code is wholly unexceptionable and, for good measure, following Sir Joseph Pilling’s report, to which the noble Lord, Lord Lexden, referred—quite unjustifiably rubbished as a whitewash—Mr Dacre has now retired from the code committee. As Peter Preston, a most respected ex-editor of the Guardian recently wrote in the Observer:
“Ipso, if you look hard at the detail, has made a pretty good stab at improving voluntary regulation. Set the Ipso and Impress editorial codes side by side and no one can see much difference. Apply those codes to current cases and there’s no obvious gap either. The problem for Ipso isn’t performance but perception”.
Fourthly, the FT and the Guardian are of course entirely self-regulating, declining to sign up even to IPSO. The great majority of newspapers, however,  have signed up to IPSO, but they have made it crystal clear that under no circumstances will they agree to regulation by a recognised body. They are, as Sir Alan Moses first put it, “the illogically opposed”. They see it, and it is widely seen by many abroad, as the form of state control. The Section 40 carrot has plainly failed to seduce the press into the Impress scheme. Do we therefore now want to watch as the stick is applied? Judges already have very considerable discretion with regard to costs orders. Are we really intent on punishing newspapers which, as a matter of principle, are simply not prepared to be regulated by Impress? Do we want war?
This being Christmas week, I hope your Lordships will indulge me if I finish my speech with a brief reminiscence about one of my own old cases. I promise that it is of some slight relevance. Over a quarter of a century ago, I presided in a jury trial at the Royal Courts of Justice over what was then a very high-profile trial of a libel case involving the late Robert Maxwell who was suing Private Eye. Mr Maxwell was complaining of a piece in the Eye which he said insinuated that he—Maxwell—had been trying to bribe Neil Kinnock, as he then was, then leader of the Labour Party, with free holidays and the like, into recommending him for a peerage. The thrust of his complaint was that he was falsely being alleged to be corruptly attempting to get a peerage. Well, the case was opened at great length, as all these cases always are, and the witnesses started going through the witness box, and the case proceeded. On the fourth day, when I came back from lunch in my inner court in the Middle Temple I found a note from the jury which are read simply, “Please sir, can you tell us what a peerage is?”.
There it was. We were four days into the case and I solemnly had then to explain the nature of a peerage and what was the underlying complaint. The next day I went back to lunch and could not resist telling my fellow benchers of the remarkable thing that not a single one of the jury of 12 knew what a peerage was, to which one rather dry old judge said, “That doesn’t necessarily follow. One of them might have known and explained it to the others and been flatly disbelieved”. It is fair to say that this was before the great reforms of 1990 or 1989—whenever it was. It did not do much to improve my faith in juries.
I should note that Mr Maxwell, before his roguery was uncovered, won that case. The jury gave him £55,000 damages, of which £50,000 were exemplary damages; he promised to give the money to a charity but never did. I wonder what your Lordships think of Private Eye. I need hardly say that it has not signed up to regulation of any sort and never will. Do your Lordships want to mulct it in costs as well as in exemplary damages so as to eventually drive it out of business? For my part, I hope not. My plea therefore is: let things be; let well alone.